Your intellectual property (also referred to as ‘IP’) will play an essential role in your business’s success. Most startups have a large portion of their value embedded in their IP – the new ideas, the new inventions and the new ways of doing things. Simply creating IP does not actually mean that you own the rights of ownership to it – unless it is copyright or circuit layouts. It may sound a little odd, but to hold the rights to your ideas or new inventions, then you must register your IP as a way of proving ownership.
IP comes in different type and forms:
- Patents – are used for new or improved products or processes. A patent is a right granted for any device, substance, process or method which is new, inventive and useful. Sadly, you cannot patent mathematical models, artistic creations, schemes, plans, or other purely mental processes. Patents are legally enforceable and give effective protection if you have invented new technology that will lead to a product, process or composition with considerable long-term commercial gain.
- Trade marks – can be a letter, phrase, word, business name, logo, slogan, number, sound, smell, picture, shape, an aspect of packaging or a combination of these. A trade mark distinguishes goods and services of one trader from those of another. Although trade mark registration is not compulsory, it is highly recommended. Registering a trademark ensures you have exclusive use of your trade mark within Australia. If you fail to protect a trade mark, it can leave you open to trade mark theft from other companies. Just remember, in some circumstances registering your trademark won’t actually secure your business trading name as this is a separate registration.
- Designs – are the shape or appearance of a manufactured good. A design is the overall appearance of a product. The visual characteristics that form the design include the shape, pattern, configuration and ornamentation which, when applied to the product, give it a unique appearance. A design registration gives you protection for the visual appearance of the product. It does not protect the feel of the product, how it works, or what the product is made from.
- Copyright – are for original material in specific categories. Copyright protects the original expression of ideas, not the ideas themselves. It is free and automatically safeguards your original works of art and literature, films, music, sound recording, computer programs and broadcasts from copying and certain other uses. Copyright is automatic and therefore, does not need to be registered in Australia.
- Confidentiality/Trade Secrets – a trade secret is a type of IP and also a strategy for protecting your IP. It can be an effective safeguard for some technologies, confidential information, know-how and other forms of IP. A confidentiality agreement prevents employees or other contractors (designers, software developers) from revealing a business secret or proprietary knowledge during and after their employment or contract with your business. Make sure you supplement your trade secret with signed confidentiality agreements with every person who knows a business secret. If an agreement is breached, you will have evidence of what was agreed to and will be able to seek compensation.
- Circuit Layouts – are the plans or designs of electronic components of three-dimensional (3D) configuration of electronic circuits, including an integrated circuit, computer chips, or semiconductors used in personal computers and computer-reliant equipment. Circuit layout rights commence automatically.
- Plant Breeder’s Rights (PBR) – are similar to patents but involve only eligible new or recently exploited plant varieties. Registered PBRs offer the holder exclusive commercial rights to a registered variety (for example a plant, vine or tree). The holder has the legal right to exclude others from certain commercial activities related to the plant variety for a set period. The new plant variety must be distinct from other varieties, as well as being uniform and stable. All plant species except fungi, algae and bacteria are eligible for protection. PBRs do not apply automatically upon creation.
You may be wondering what the benefits are of protecting your IP, other than the protection itself. Well, your IP may:
- generate profit through the sale or licensing of products and services
- attract keen investors
- increase the value of your startup business, and
- block other players in your industry from commercialising competing products and services.
Ultimately, you should consider developing an IP strategy with your professional advisors to analyse and plan how your business can generate profit from your innovations.
At Bolter, our team has extensive experience in the commercialisation and licencing of IP and are more than happy to have a discussion how we can protect and help you capitalise on your IP. Be assured, there is an obligation of confidentiality that automatically exists between lawyers and their clients, so your secrets are safe with us.
See our other article here for Tips on protecting your IP.